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Kasiram v. Holder

United States District Court, Ninth Circuit

August 22, 2013

AVINASH KASIRAM, Petitioner,
v.
ERIC HOLDER, et al., Respondents.

FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF JURISDICTION (Doc. 1) ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE

JENNIFER L. THURSTON, Magistrate Judge.

Petitioner is a federal prisoner proceeding in propria persona with a petition for writ of mandate pursuant to 28 U.S.C. § 1651.

PROCEDURAL HISTORY

The instant petition was filed on August 14, 2013. (Doc. 1). The Court has conducted a preliminary screening of the petition and has determined that it lacks jurisdiction to proceed.

DISCUSSION

A. Preliminary Screening.

Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if it "plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court...." Rule 4 of the Rules Governing Section 2254 Cases. The Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant to the respondent's motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook , 260 F.3d 1039 (9th Cir.2001).

B. Lack of Habeas Jurisdiction.

In this case, Petitioner is serving a 48-month sentence resulting from his conviction on narcotics-trafficking charges. (Doc. 1, p. 2). Petitioner has a projected release date of June 3, 2014. Id . Because of the aggravated nature of the underlying felony conviction, Petitioner, an alien, is subject to removal once his sentence has been completed. Petitioner relies on 8 U.S.C. § 1228(a)(3)(A), which provides, inter alia, that the Attorney General of the United States and the BOP should ensure that deportation proceedings begin as expeditiously as possible after the date of conviction, and that the proceedings are complete prior to the expiration of the alien's sentence.

Petitioner has submitted documentation indicating he has requested that prison staff enforce the provisions of § 1228(a)(3)(A) by initiating the removal process in light of his projected release date of June 3, 2014, in order to ensure that the mandate of § 1228 is implemented and to minimize the amount of post-release detention time Petitioner will have to spend in the custody of the Bureau of Immigration and Customs Enforcement ("ICE"), which has apparently filed a detainer against Petitioner for his removal once his present sentence has been completed. As relief, Petitioner seeks an order from this Court directing Respondents to "take appropriate steps to commence [Petitioner's] hearing and to complete the administrative process [for removal] within the time prescribed by Congress prior to [Petitioner's] release date." (Doc. 1, p. 6). For the reasons discussed below, this Court lacks jurisdiction to address Petitioner's claim.

Writ of habeas corpus relief extends to a person in custody under the authority of the United States. See 28 U.S.C. § 2241. While a federal prisoner who wishes to challenge the validity or constitutionality of his conviction must bring a petition for writ of habeas corpus under 28 U.S.C. § 2255, a petitioner challenging the manner, location, or conditions of that sentence's execution must bring a petition for writ of habeas corpus under 28 U.S.C. § 2241. Capaldi v. Pontesso , 135 F.3d 1122, 1123 (6th Cir. 1998); United States v. Tubwell , 37 F.3d 175, 177 (5th Cir. 1994); Kingsley v. Bureau of Prisons , 937 F.2d 26, 30 n.5 (2nd Cir. 1991); United States v. Jalili , 925 F.2d 889, 893-94 (6th Cir. 1991); Barden v. Keohane , 921 F.2d 476, 478-79 (3rd Cir. 1991); United States v. Hutchings , 835 F.2d 185, 186-87 (8th Cir. 1987); Brown v. United States , 610 F.2d 672, 677 (9th Cir. 1990).

To receive relief under 28 U.S.C. § 2241 a petitioner in federal custody must show that his sentence is being executed in an illegal, but not necessarily unconstitutional, manor. See, e.g., Clark v. Floyd , 80 F.3d 371, 372, 374 (9th Cir. 1995) (contending time spent in state custody should be credited toward federal custody); Jalili , 925 F.2d at 893-94 (asserting petitioner should be housed at a community treatment center); Barden , 921 F.2d at 479 (arguing Bureau of Prisons erred in determining whether petitioner could receive credit for time spent in state custody); Tubwell , 37 F.3d 175 (alleging error in parol revocation); Hutchings , 835 F.2d at 185-86 (claiming Board of Parole mistakenly denied petitioner's release); Brown , 610 F.2d at 677 (challenging content of inaccurate pre-sentence report used to deny parol). A petitioner filing a petition for writ of habeas corpus under 28 U.S.C. § 2241 must file the petition in the judicial district of the petitioner's custodian. Hutchings , 835 F.2d at 187; Brown , 610 F.2d at 677.

Here, Petitioner is challenging neither the fact nor duration of his present sentence for drug trafficking. Rather, it appears that he is seeking to challenge the potential or possible future confinement by ICE following the completion of his present sentence, by accelerating the removal process and thereby reducing the length of his ICE detention prior to removal. Because habeas jurisdiction is contingent upon a petitioner challenging the fact or duration of his present sentence, under the case law cited above, any habeas petition raising these claims would have to be dismissed for lack of jurisdiction. The Court is unaware of any federal law authorizing habeas jurisdiction to review a potential future term of detention.

C. Other Bases For Jurisdiction.

1. Jurisdiction Over ICE Removal Decisions.

Regarding this Court's authority to review decisions by ICE, Title 8 U.S.C. § 1252 allows only very limited judicial review of ICE orders and decisions. See 8 U.S.C. § 1252 (stating which orders are reviewable and listing requirements to seek judicial review); Reno v. American-Arab Anti-Discrimination Comm. , 119 S.Ct. 936, 943 (1999) (interpreting 8 U.S.C. § 1252(g) to find no judicial review of INS's "decision or action to commence proceedings, adjudicate cases, or execute removal orders"). However, there is no support for the proposition that the Court has jurisdiction to review the ICE's alleged future conduct. It is ICE, and not this Court, which must determine whether the Petitioner in this case is deportable or removable. It is also ICE who determines whether the Petitioner is entitled to a stay from removal under § 212(c). An ICE detainer or hold does not mean that Petitioner is in ICE custody for the purposes of obtaining habeas corpus relief. See Campos v. Immigration and Naturalization Service , 62 F.3d 311 (9th Cir. 1995); Garcia v. Taylor , 40 F.3d 299, 303 (9th Cir. 1994), superseded by statute on other grounds ("[T]he bare detainer letter alone does not sufficiently place an alien in INS custody to make habeas corpus available."). The detainer is only a notification that a removal decision will be made at some later date. Garcia, at 303-04; Campillo v. Sullivan , 853 F.2d 593, 595 (8th Cir. 1988). Merely because Petitioner may be subject to an ICE detainer or hold, there is no final order of removal or deportation and he is not in ICE custody. Thus, to the extent that Petitioner is seeking review of some potential ICE determination at some unspecified future date, the Court lacks authority for such a review.

2. Jurisdiction Over BOP's Discretionary Decisions.

Regarding the Court's authority to review the Bureau of Prisons' ("BOP") discretionary decisions related to the statute cited above, that authority, too, is lacking. Congress has mandated that the BOP, under the direction of the Attorney General, shall have charge of the management and regulation of all federal penal and correctional institutions. 18 U.S.C. § 4042(a)(1). Congress has delegated to the BOP the authority to designate the institution of confinement. Title 18 U.S.C. § 3621(b) provides in pertinent part as follows:

(b) The Bureau of Prisons shall designate the place of the prisoner's imprisonment. The Bureau may designate any available penal or correctional facility that meets minimum standards of health and habitability established by the Bureau, whether maintained by the Federal Government or otherwise and whether within or without the judicial district in which the ...

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